What happens if your spouse dies during your divorce and has changed the beneficiary on your retirement accounts?

Experienced Bay Area Family Law attorneys will tell clients that after they decide to file for divorce, you cannot change the beneficiary on your life insurance, retirement, or annuities until after the divorce is final unless you have consent from your soon to be ex spouse.  But what happens when someone does not follow these rules?

In one case a deceased spouse violated the divorce process rules by changing the beneficiary of his community property IRA (which has a balance of $2 million) from the other spouse client to the parties' minor children in trust.

In order to recover the funds, the family law case was put on hold and instead the case was transferred to the Probate department to resolve the dispute between the Trust of the minor children and the spouse who thought she was going to receive the funds.


Contact me at amanda@gordonfamilylaw.com for more information.


What changes to my estate plan can I not make during divorce?

You may not transfer, encumber, hypothecate, conceal, or in any way dispose of any property, real or personal, whether community, quasi-community, or separate, except in the usual course of business or for the necessities of life without consent of your spouse. 

You cannot create a “nonprobate transfer” or modify a “nonprobate transfer” in a manner that affects the disposition of property subject to the transfer without consent of your spouse.A “nonprobate transfer” includes, but is not limited to, revocable trusts, pension plans, employee benefit plans, IRAs, and life insurance. (Note: Pension plan beneficiaries are controlled by the Employee Retirement Income Security Act of 1974 (ERISA) (29 USC §§1001–1461), and the nonparticipant spouse is entitled to be the beneficiary under federal law.)


I’m getting a divorce, do I need to change my estate plan?


If you have recently started the divorce process, you will also want to consider your estate planning goals in light of your divorce. If you decide to make changes to your estate plans, or to create an estate plan for the first time, it is important to work closely with an experienced family law and estate planning counsel to effectuate your testamentary goals without violating the Automatic Temporary Restraining Orders (“ATROs”) set out in Family Code §2040.

The ATROs are effective the moment you file for dissolution, or are served by your spouse, and remain in place until all issues in your case are resolved. The ATROs govern what changes you may make to your estate plans unilaterally, what changes require notice to your spouse, what changes require the consent of your spouse, and what changes can be made only with a court order.

Changes You May Make To Your Estate Plans

A primary purpose of the ATROs is to maintain the status quo for the protection of parties and children while the division of marital assets is in progress. Among other things, this means maintaining health and life insurance beneficiary designations, revoking existing trusts (and severing existing joint tenancies) only after notice is served on the other party, and prohibiting assets from being transferred to trustees of new trusts (who might not be subject to the court’s jurisdiction) except with the express consent of the other party or by order of the court.

It is also important to understand what would happen to your estate if you were to die during the pendency of your dissolution without making any changes to your estate plans. The answer depends on whether you were to die before or after entry of judgment terminating your marital status.

Death Before Entry Of Judgment Terminating Marital Status

If you were to die before entry of a status-only judgment, the Family Law Court would lose jurisdiction over all issues, except those already adjudicated. Under these circumstances, your share of the community property and all of your separate property would pass as if the Petition for Dissolution of Marriage had not been filed. Thus, your assets would pass to the beneficiaries of your current estate plan, usually your spouse. If you do not have an estate plan, your estate would pass through probate, and your spouse would receive all the community property and your separate property. Any nonprobate assets, such as retirement assets and life insurance plans, would pass to your designated beneficiaries.

Death After Judgment Terminating Marital Status

If you were to die after a status-only judgment that expressly reserves jurisdiction over the remaining issues in the case, the Family Law Court would retain jurisdiction, and the property division would take place there. The Executor of your will would be substituted in for you, and the Family Law Court would retain jurisdiction to decide the remaining issues in the case.

Death after a status-only judgment also has a very different impact on how your estate would be distributed. A judgment of dissolution automatically terminates nonprobate transfers between former spouses, including wills, trusts, and beneficiary rights under retirement plans. It also terminates the right-of-survivorship interest in joint tenancies and community property with right of survivorship. Unless the respective wills otherwise provide, the judgment also revokes all testamentary transfers between former spouses and any provision in a will nominating the former spouse as trustee, conservator, or guardian. However, a judgment of dissolution does not terminate the surviving spouse’s rights as a designated beneficiary under a life insurance policy. The purpose of this post is to highlight the importance of estate planning during and after your dissolution.

Contact me at amanda@gordonfamilylaw.com for more information.